State Records Committee Appeal Decision 2022-05

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

COURTNEY TANNER on behalf of the SALT LAKE TRIBUNE, Petitioner, v.

THE UNIVERSITY OF UTAH & THE UTAH SYSTEM OF HIGHER EDUCATION, Respondents.

DECISION AND ORDER

Case No. 22-05

By this appeal Petitioner, Courtney Tanner, a journalist with the Salt Lake Tribune, is requesting records held by Respondents, the University of Utah and the Utah System of Higher Education.

FACTS

On September 9, 2021, Ms. Tanner submitted a request for records made pursuant to the Government Records Access and Management Act (“GRAMA”) from the Utah System of Higher Education (“USHE”). Ms. Tanner requested “all comments submitted via the email created and operated by [USHE] the public to give thoughts on the three finalists during the most recent U. presidential search.” Trisha Dugovic, Respondent’s Director of Communications, stated in an e-mail dated September 16, 2021 that the Utah Board of Higher Education (“Board”) had denied her records request because pursuant to Utah Code §§ 63G-2-305(66), -305(28) and 53B-2-107(7), the records are protected non-public records. An appeal was filed and in a letter dated October 13, 2021, Dave R. Woolstenhulme, Commissioner of Higher Education, upheld the decision of the Board.

Also on September 9, 2021, Ms. Tanner submitted a request to the University of Utah (“University”) for “all comments submitted through the form page that was on the University of Utah’s website for presidential feedback for each of the three finalists I the most recent search.” On September 16, 2021, Brian Christiansen, Director, Administration University of Utah, denied Ms. Tanner’s request similarly finding that pursuant to Utah Code §§ 63G-2-305(66), -305(28) and 53B-2-107(7), the records are protected non-public records. After an appeal was filed, Todd Samuelson, Chief Administrative Officer and Appeals Officer for the University, upheld the decision by Mr. Christiansen.

Two appeals were filed by Petitioner with the State Records Committee (“Committee”). Because of the similarity of the records requests and the legal issues regarding the requests, both appeals were reviewed together by the Committee during a hearing held on January 20, 2022. After carefully considering the evidence and the arguments presented by the parties, the Committee issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. GRAMA specifies that “all records are public unless otherwise expressly provided by statute.” Utah Code § 63G-2-201(2). Records that are not public are designated as either “private,” “protected,” or “controlled.” See, Utah Code §§ 63G-2-302, -303, -304 and -305.

2. Record pertaining to the search process for a president of an institution of higher education described in Utah Code § 58B-2-102, except for application materials for a publicly announced finalist, are protected records if properly classified by a governmental entity. Utah Code § 63G-2-305(66). The University is defined as an institution of higher education pursuant to Utah Code § 53B-1-102(1)(a) and Utah Code § 53B-2-102 outlines the process for appointment of an institution of higher education’s president.

3. Records of an institution within the state system of higher education as defined in Utah Code § 53B-1-102 regarding appointments which could be properly discussed in a meeting closed in accordance with the Open Public Meetings Act, are protected records if properly classified by a governmental entity provided that records of the final decisions about appointments may not be classified as protected. Utah Code § 63G-2-305(28).

4. A record or information gathered or generated during the search process for an appointment of institution of higher education president, including a candidate’s application and the search committee’s deliberations, is confidential and is a protected record under Utah Code § 63G-2-305. Utah Code § 53B-2-102(7)(a). Application materials for a publicly named finalist are not protected records under Utah Code § 63G-2-305. Utah Code § 53B-2-102(7)(b).

5. After having reviewed all of the evidence and the arguments of the parties, the Committee finds that the decisions by Respondents should be affirmed. The Utah Legislature has declared its intention to have certain records pertaining to the search process for a president of an institution of higher education to be non-public protected records. Accordingly, the Committee finds that Respondents properly classified the requested records as protected records pursuant to Utah Code §§ 63G-2-305(66), -305(28), & 53B-2-102(7).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Courtney Tanner on behalf of the Salt Lake Tribune, is DENIED.

RIGHT TO APPEAL

A party to a proceeding before the Committee may seek judicial review in District Court of a Committee's Order by filing a petition for review of the Committee Order as provided in Utah Code § 63G-2-404. Utah Code § 63G-2-403(14). A petition for judicial review of a Committee Order "shall be filed no later than 30 days" after the date of the Committee Order. Utah Code § 63G-2-404(1)(a). The petition for judicial review must be a complaint which is governed by the Utah Rules of Civil Procedure and include the Committee as a necessary party and contain the required information listed in Subsection -404(2). Utah Code § 63G-2-404(1) & (2). The court shall make its decision de novo but shall allow introduction of evidence presented to the Committee, determine all questions of fact and law without a jury, and decide the issue at the earliest practical opportunity. Utah Code § 63G-2-404(6). In order to protect parties’ rights on appeal, a party may wish to seek advice from an attorney.

PENALTY NOTICE

Pursuant to Utah Code § 63G-2-403(15)(c), if the Committee orders the governmental entity to produce a record and no appeal is filed, the government entity herein shall comply with the order of the Committee and shall: (1) Produce the record; and (2) File a notice of compliance with the Committee. If the governmental entity ordered to produce a record fails to file a notice of compliance or a notice of intent to appeal, the Committee may do either or both of the following: (1) Impose a civil penalty of up to $500 for each day of continuing noncompliance; or (2) Send written notice of the entity's noncompliance to the Governor. Utah Code § 63G-2-403(15)(d)(i)(B). In imposing a civil penalty, the Committee shall consider the gravity and circumstances of the violation, including whether the failure to comply was due to neglect or was willful or intentional. Utah Code § 63G-2-403(15)(d)(ii).

Entered this 31st day of January 2022

BY THE STATE RECORDS COMMITTEE

_____________________________________
KENNETH R. WILLIAMS
Chair, State Records Committee